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2007 DIGILAW 152 (HP)

SUNIL v. BUDHA DEVI

2007-05-03

DEV DARSHAN SUD

body2007
JUDGEMENT Dev Darshan Sud, J. The petitioner, was the plaintiff before the learned trial Court, has filed this revision petition challenging the order of the learned Civil Judge (Junior Division) in case No.24-1 of 2001.Suit for permanent prohibitory and mandatory injunction was filed praying that a decree be passed in favour of the plaintiff and against the respondents restraining them from encroaching upon any part of the land of the plaintiff by making any construction etc. through his authorized servants, agents, and a decree for mandatory injunction ordering the respondents to remove the debris etc. from the land of the plaintiff and not change its nature etc. 2. During the pendency of the appeal, the plaintiff moved an application under Order 6 Rule 17 of the Code of Civil Procedure read with Section 40 of Specific Relief Act, hereinafter referred to as the "Act", for amendment of the plaint. The amendment sought was to the following effect: - "13(a). That the aforesaid illegal acts of the Defendants No.1 and 2 of making overhanging encroachments in the form of projections etc. by laying sewerage pipelines through the land of plaintiff and by constructing staircases on the land of the plaintiff and constructing a Pucca retaining wall in the land of the plaintiff has already caused ioss and damage to the tune of Rs. 1,54,000/- which has been worked from the month of March, 2001. till the date of assessment made by an Expert Engineer on 23.6.2002. The plaintiff is not in a position to make use of the adjoining land due to the aforesaid illegal acts of the Defendant Nos.1 and 2. The plaintiff is entitled to grant a decree of recovery of Rs. 1,54,000/- in / addition to right of plaintiff to see the removal of entire encroachments. The plaintiff is entitled to pendentelite and future interest on the aforesaid amount of loss and damage @18 per annum from the date of assessment i.e. 23.6.2002 till the damaged and encroached suit property is restored to its original position. The cause of action to claim the aforesaid loss and damage arose in the month of March, 2001 and then in the month of June, 2002 and when it was got assessed by an Expert Engineer. The plaintiff is still suffering the loss and damage on account of illegal acts of the Defendant Nos. 1 and 2. The cause of action to claim the aforesaid loss and damage arose in the month of March, 2001 and then in the month of June, 2002 and when it was got assessed by an Expert Engineer. The plaintiff is still suffering the loss and damage on account of illegal acts of the Defendant Nos. 1 and 2. Therefore, the plaintiff is entitled to interest on the aforesaid amount at the prevalent market rate of 18% per annum." 3. The learned trial Court on consideration of the reply filed by the respondents dismissed the application solely on the ground that it was barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure. It was held that the plaintiff had not sought leave to claim relief to which he was entitled to at the time when the suit was filed. The relief having been abandoned would not be claimed by way of amendment. It also held that the court fee on Rs. 1,54,000/-which is claimed as damages has not been affixed and the "event" has not, occurred during the pendency of the suit. The application was, therefore, dismissed. 4. I have heard learned counsel for the parties and have gone through the record. 5. I find that the learned court has completely misdirected itself on the question for determination. Section 430 of the Specific Relief Act, grants the right to the plaintiff to claim damages in lieu of, or in addition to the relief of in substitution for the relief of injunction. Sub-section (2) of section 40 provides: "no relief for damage shall be granted under this section unless the plaintiff has claimed such relief in his plaint; Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including, such claim." 6. A bare reading of the provision shows that a right vests in the plaintiff to claim damages at any stage of the proceedings. The statute allows the plaintiff to amend the plaint and to incorporate a prayer for claim of damages at any stage of the proceedings. This would not require any elaboration, as the legislative intend is clear. The learned Court was clearly wrong in ignoring this provision while passing the impugned order. The statute allows the plaintiff to amend the plaint and to incorporate a prayer for claim of damages at any stage of the proceedings. This would not require any elaboration, as the legislative intend is clear. The learned Court was clearly wrong in ignoring this provision while passing the impugned order. The matter regarding amendment is no longer res integra. The High Court of Madras in V.R. Nathan vs. Maac Laboratories (P.) Ltd. AIR 1975 Madras 189, has held that "in view of the imperative language of the proviso which requires that the court shall grant the amendment, these submissions of Sri. S.Sampath Kumar are futile. The plaintiff is entitled, as a matter of right, to have these amendments made and the only discretion left for the Court is about the terms, if any, on which he may be permitted to amend." 7.To similar effect is the judgment of the High Court of Karnataka in Sri M.R.K. Rau and others vs. Corporation of the City of Bangalore, by its Commissioner, AIR 1992 Karnataka 411. The Court while dealing with the question of amendment has again held that it can be allowed at any stage. It was contended that the amendment could not be allowed as the relief for damages of compensation is barred by limitation on the date when the application was made. The Court, while rejecting this contention, held that the provisions of Section 40 of the Act are clear and unequivocal. It was held: "11. Subrsec (3) of S.40 of the Act is relevant to the case on hand, From the provisions contained in S.40(1) and (2) of the Act, it emerges that in a suit for perpetual injunction or Mandatory injunction, the plaintiff may also claim damages and it would be open to the court to award damages in , addition to or in substitution for a decree of perpetual injunction or mandatory injunction provided the plaintiff has claimed damages in his plaint. Even if the plaintiff has not claimed damages in the plaint, it is open to the plaintiff to amend the plaint at any stage of the proceedings and include the claim for damages. Even if the plaintiff has not claimed damages in the plaint, it is open to the plaintiff to amend the plaint at any stage of the proceedings and include the claim for damages. In the light of the words "the court shall at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including just claim" contained in the proviso to sub-sec (2) of S.40 of the Act, the court cannot refuse permission to the plaintiff to amend the plaint to include the claim for damages in a suit for perpetual injunction or mandatory injunction. Therefore, the claim for damages is inherent in a suit for perpetual injunction or mandatory injunction. Therefore, where no such relief is specifically claimed, if sought for at any stage of the proceeding. It has to be allowed to be added. Therefore, there is no substance in the contention of the defendant that the claim for damages is barred by limitation on the date the application seeking amendment to add the claim for damages is filed, as such it cannot be allowed. Hence, the contention of the defendant is rejected. Accordingly point No.i is answered in the affirmative." 8. To the similar effect in the judgment of the High Court of Delhi in Jagdish and others vs. Har Sarup, AIR 1978 Delhi 233. Again while dealing with the question of allowing amendment, the High Court of Delhi has held that the amendment could be allowed not, only during the pendency of the suit, but even during appeal. The decision of the Madras High Court was applied by the court in this case and the amendment was allowed. It was also held that the words "at any stage of the proceedings" also contemplate such amendment being made during appeal. It has held as under: "10. The word proceeding" is not a term of art. It has to be construed with reference to the context in which it has been used. There is nothing to show that "at any stage of the proceeding" does not relate to the appeals which may arise out of the suit. It is now well settled hat an appeal is a continuation of the suit. It has to be construed with reference to the context in which it has been used. There is nothing to show that "at any stage of the proceeding" does not relate to the appeals which may arise out of the suit. It is now well settled hat an appeal is a continuation of the suit. Where-eyer an appeal lies against any decree and an appeal is filed according to law, the finality of the decree of the trial court comes to an end. Thereafter it is the decree and judgment of the appellate court which will replace the decree and judgment of the appellate court which will replace the decree and judgment of the trial court." 13. I find that a Division Bench of the Madras High Court is VR. Nathan v. Mac Laboratories (P.) Ltd. AIR 1975 Mad 189, allowed the amendment which was asked for the first time during the pendency of the appeal before the High Court against the decree of the High Court against the decree of the trial Court dismissing the suit. The court held: "in view of the imperative language of the proviso which requires that the court shall grant the amendment *** *** *** the plaintiff is entitled, as a matter of right, to have the amendments made and the only discretion left for the court is about the terms, if any, on which he may be permitted to amend." All the pleas opposing the amendment on the ground that it was very much belated and was lacking in bona fides etc. were held to be futile in view of the proviso to sub-section (2) of S.40 of the Specific Relief Act." 9. These provisions were also subject matter of consideration in this Court in Sunil Kuthiala vs. Ajwesh Sood and others, Latest HLJ 2006 (HP) 1055, applying the ratio of the judgments of the Madras and Delhi High Courts, it was held that Section 40 of the Act is clear and does not admit of any other meaning and allows amendment of the plaint at any stage. 10. Learned counsel for the respondents has urged that the application for amendment is not maintainable. 10. Learned counsel for the respondents has urged that the application for amendment is not maintainable. He submits that the provision of Order 6 Rule 17 applies in case of amendment that Section 6 Rule 17 applies in case of amendment that Section 40 of the Act would be subject to the limitation which have been incorporated therein after the amendment of the plaint. This contention of the learned counsel appearing for the respondents cannot be accepted. Reading the two provisions together, I find that Section 40 is clear and unequivocal in terms of the rights which had been granted to the plaintiff. The provisions of the Code of Civil Procedure are general in nature and the Specific Relief Act is a special statute. There is no conflict between the two and the right as given with Specific Relief Act cannot be subjugated to the generality of the Code of Civil Procedure. 11. In the circumstances, the revision petition is accepted and the amendment is allowed. The case is remanded to the learned trial Court with the directions that it will proceed with. the case after allowing the amendment application already filed on the record. The petitioner will be given reasonable time to affix court fee. The parties to appear before the learned trial court on 31st May, 2007. There shall be no order as to costs.